Daily Times Editorial Dec 12, 2009

NRO and the system

The federal government has asked the Supreme Court (SC) to declare the National Reconciliation Ordinance (NRO) ultra vires of the constitution. This was the plea taken by the federation’s newly appointed counsel, Barrister Kamal Azfar, before the 17-member larger bench on Thursday. Kamal Azfar argued that the NRO was a violation of Articles 2(a), 4, 8 and 25 of the constitution. The authors of the NRO therefore lack legislative competence in the matter. The federation counsel also pointed out that certain factual issues that were not part of the petitions had been raised for the first time during the proceedings, which is contrary to settled law in the light of the SC’s verdicts that arguments be confined to legal issues. The “other points” raised could, if the SC desired, be dealt with in separate applications from the petitioners.
Interestingly, during Thursday’s proceedings, Chief Justice Iftikhar Muhammad Chaudhry had to ask various counsel deposing before the bench to confine themselves to arguments about the constitutionality of the NRO, the issue before the bench, and not to stray into other areas. In reply to the federation’s plea that the country is poised at a crossroads, one road leading to a federal democratic welfare state with a balance of power among legislature, executive and judiciary while the other leads to destabilisation of the rule of law, the Chief Justice made it clear that the SC was also a supporter of the system. As though to underline his view, the Chief Justice emphatically said, “We are telling everyone loud and clear that we are not going to derail the system.” The Chief Justice went on to clarify that the SC was not concerned in this case with the fate of individuals, and had only requested the lists of NRO beneficiaries in order to provide a basis for the case.
With the exception of one pleader, the NRO has been reduced to an orphan, with no defenders, and some arguing that it be declared void ab initio. Without meaning to anticipate the SC, it does not appear likely that the NRO will survive the battering it has received in this case. It is not only likely to be struck down, but may well be expunged as in violation of the constitution altogether. If the NRO is all but a settled matter, what remains to be focused on?
The sense of the SC bench will have disappointed the self-anointed warriors who were hoping that the NRO case would spell the doom of the present government and president, if not the democratic dispensation entire. With hindsight, it could be argued that they completely misread the law, the present conjuncture, and the perceptions, concerns and considerations of all the major players in the life and politics of the country. Admittedly these warriors were few, but they exercised, at least for a time, an influence far in excess of what they merited. If they seem to be falling flat on their faces, it is because the stakeholders in the system recognize not only the critical juncture at which the country stands poised, but also the need for all political forces and institutions of state to pull together and in the same direction of continuity, patience with our democracy still in infancy (once again), and in unity to face the serious challenges facing us, first and foremost the ongoing struggle against terrorism. Let that be a lesson for all would-be Platos already tested and any that may still be lurking in the wings.